Bhanu Bhakta Acharya

(acharya.bhanubhakta@gmail.com)

Impunity is the state of freedom from punishment. As defined in the Oxford Dictionary, it is the 'exemption from punishment or from the harmful consequences of an action'. The international law of human rights refers impunity as the failure to bring perpetrators of human rights violations to justice and, as such, itself constitutes a denial of the victims' right to justice and redress.  Nepal, which recently ratified the UN Convention on the Rights of Persons with Disabilities, is probably the number one country in South Asia regarding its commitments on human rights. Regardless of this, the year 2009 is full of impunity practices due to which the Comprehensive Peace Accord (CPA) was almost ignored and culture of impunity endangered the peace process.

The year 2009, which experienced two coalition governments under the leadership of UCPN-M and CPN-UML, did not obtain any significant opportunity to alleviate the culture of impunity even though both coalitions had rendered high sounding speeches on rule of law and their verbal commitments on human rights. As far of my understanding, impunity prevailed in this country in the year 2009 due to at least six distinct causes:

The first cause is promotion of perpetrators or the accused. This was very much evident to hugely contribute the impunity to flourish last year. In every democratic society, the perpetrators of human rights violations are brought into justice system and put into a fair trail. This is the minimum level of common understanding in a democratic set up. Government of Nepal (GON), however, promoted Major General Toran Jung Bahadur Singh on 24 December 2009 as chief of the General staff, the second-in-command of Nepal Army, despite a large hue and cry from human rights communities demanding for Singh's suspension. Maj. Gen. Singh has allegations of involvement in the enforced disappearance of 49 detainees from the Army's Bhairabnath Battalion in 2003-04. On the contrary, the PLA commander Kali Bahadur Kham, the accused of murdering Koteshwar-based entrepreneur Ram Hari Shrestha in May 2008, was promoted by UCPN-M in the party hierarchy.

The second cause to flourish impunity in the year is government's no punishments but compensations' tactic. Last December, for instance, GON decided to handover a sum of three lakh rupees to Tika Bista, a Rukum-based journalist, as compensation against her torment resulted by a fatal attack. When a Janakpur-based journalist Uma Singh was murdered in January 2009, GON immediately declared her martyr and announced a sum of one million rupees as compensation. The accused of the murders of Ram Hari Shrestha and Prachanda Thaiba were not brought to justice yet but compensations were proposed to families. Paying compensation, visiting them in hospitals, declaring martyrs, sympathizing with emotions is not enough to people's expectation from a democratic government; they want the perpetrators bring into justice system and punish as per the law.

The third cause to institutionalize impunity is- punishment to the perpetrators became a showy drama. A typical instance for this is Major Niranjan Basnet's case. Maj. Basnet and other three of NA were accused of the murder of Maina Sunuwar in February 2004. Instead of prosecuting them through civilian court, they were prosecuted through court-martial procedure, which gave Maj. Basnet a clean chit and other three were given very negligible punishment. Neither the Army Court nor any other Kangaroo court does possess the right to disobey the civilian court order. In the same way, UCPN-M insisted to punish itself to the accused of Ramhari Shrestha and Prachanda Thaiba's murders. No political party, however, can punish the accused of the criminal cases. This sort of dramatization has encouraged impunity.

The practice of withdrawing cases from the courts is the fourth cause to further strengthen the impunity. In 2007-09, GON withdrew at least 587 cases from the court, which freed criminals involved in grave human rights violations cases such as rape, murder, torture, etc. Such withdrawals, which also include the perpetrators of the Kapilvastu carnage, were made as per an understanding among the ruling coalitions, whose cadres have been accused of involvement in different criminal activities. As per the Article 2(3) of the International Covenant on Civil and Political Rights, to which Nepal is a signatory, the government cannot withdraw the criminal cases having universal jurisdiction such as murder and rape under any condition. Regarding the withdrawals, the National Human Rights Commission warned the GON time and again that most of the cases were identified as serious crimes and they had nothing to do with politics.

The fifth cause to swell impunity in the year is non-publication and implementations of probe commissions' report and recommendations. Several probe commissions were formulated last year regarding human rights violation cases; such as on Jajarkot health issue, female police rape case in Achham, or journalist's murder case in Janakpur, etc. Reports of such commissions, however, were neither made public and nor their recommendations ever implemented. Probe commissions in Nepal are just to show the Government's commitments on human rights to national and international actors and to soothe the fury of the general public temporarily. We all know that the reports of the Mallik and the Rayamajhi Commissions are still pending to be public.

Last but not least, one of the very important causes to abound impunity is- politicizing crime and criminalizing politics. Criminals are criminals and they can no longer be any political party's cadres. But they are treated as important people to political parties. In the year 2009, criminal cases were politicized and the alleged perpetrators were provided a haven; due to which the administration of justice was badly paralyzed. In a recent speech, Premier Madhav Kumar Nepal admitted that criminals are being stronger than the government; therefore, Government is being incapable to prosecute them. Likewise, almost all political parties have established paramilitary structures of their youth wings, which encouraged physical atrocities and violence, as a consequence, political parties were found involved in several criminal cases.

Besides, the year 2009 is remembered for many reasons in regard of impunity because this is the same year in which a State Minister Karima Begam slapped a high rank Government official of Parsa district at latter's office, and the Premier failed to take any action against the Minister merely to preserve the political coalition. Similarly, Defence Minister Bidya Bhandari was full of media coverage during the whole year because of her success to protect and promote the NA officers, whose human rights records were appalling. In addition, Transparency International Report ranked Nepal as the 143rd country in the anti-corruption scale, 22 notches down from last year, in 2009. Impunity remained unchecked in the year and none of the perpetrators of past or ongoing human rights violations was brought into justice as a result of a criminal investigation.

(Mr. Acharya is the Communication officer of NHRC Nepal)